[1] The First Amendment puts protection for expressive content in terms that are both sweeping and absolute: "Congress shall make no law... abridging the freedom of speech, or of the press" [2] Despite this broad protection, the roots of U.S. attempts to legally suppress obscenity extend back to the English common law offense of obscene libel and censorship of stage plays by the Master of the Revels.

[3] American definitions of obscene material were variable and sporadic until 1879, when the test adopted in the English case Regina v. Hicklin (1868) was used in the prosecution of D. M. Bennett.

This test regarded all material tending "to deprave and corrupt those whose minds are open to such immoral influences" as obscene, regardless of its artistic or literary merit.

Under this test, works such as Honoré de Balzac's Contes Drolatiques, Gustave Flaubert's Madame Bovary, James Joyce's Ulysses, and D. H. Lawrence's Lady Chatterley's Lover had all been subject to suppression under the federal Comstock Laws.

Ralph Ginzburg owned or controlled three companies: Documentary Books, Inc., Eros Magazine, Inc. and Liaison News Letter, Inc.

Brennan noted that "...each of the accused publications was originated or sold as stock in trade of the sordid business of pandering".

"[8] Among other points, the decision noted that Ginzburg had first sought to mail these publications from Blue Ball and Intercourse in Pennsylvania before being allowed bulk mailing privileges from Middlesex, New Jersey and "...that these hamlets were chosen only for the value their names would have in furthering petitioners' efforts to sell their publications on the basis of salacious appeal.

"We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test.